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Tuesday round-up

Yesterday the court issued additional orders from its December 8 conference; the justices did not add any cases to their docket, and they declined to review a case asking whether federal law prohibits employment discrimination on the basis of sexual orientation. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage of the cert denial in Evans v. Georgia Regional Hospital comes from Greg Stohr at Bloomberg, Andrew Chung at Reuters, Adam Liptak for The New York Times, Richard Wolf for USA Today, Lyle Denniston at his eponymous blog, and Robert Barnes for The Washington Post, who reports that “the case at hand … had procedural problems that some argued made it a troublesome test case for the issue.” Commentary comes from Ross Runkel at his eponymous blog.

Benisek v. Lamone, a partisan-gerrymandering challenge by Republican voters to a congressional district in Maryland that the justices added to their docket last Friday, is drawing comment. At the Election Law Blog, Rick Pildes observes that “[d]eciding to hear the Maryland case is a significant signal that a majority of the Court is not going to hold partisan gerrymandering claims to be non-justiciable (that is, inappropriate for judicial resolution)” in the first partisan-gerrymandering case this term, Gill v. Whitford, a challenge by Democratic voters to Wisconsin’s electoral maps. In an op-ed for the Los Angeles Times, Richard Hasen suggests that “[d]eciding Gill and Benisek together would allow the court, in announcing a new partisan-gerrymandering rule, to say that sometimes the rule favors one party and sometimes it favors the other.” Steven Mazie at The Economist’s Democracy in America blog agrees that “[b]eing perceived by the public as an honest broker unwedded to party or ideology is an increasingly elusive but fervent wish of many of the justices—particularly the chief.”

At, Tony Mauro reports on research showing that Supreme Court law clerks belong to “an elite club still dominated by white men,” and that although “some variables are outside the court’s control, few justices seem to be going out of their way to help boost diversity.” Additional reporting on the research comes from Tony Mauro and Vanessa Blum at The National Law Journal (subscription or registration required). Also at The National Law Journal, Mauro breaks down the findings on gender imbalance among Supreme Court clerks here and racial diversity here, and identifies the most prolific “feeder” judges here and law schools here, while Karen Sloan reports that Justice Clarence Thomas “casts the widest net” in venturing beyond elite law schools when hiring his law clerks.

For The Los Angeles Times, David Savage reports that a 1990 opinion by the late Justice Antonin Scalia “looms uncomfortably over the court these days as conservative Christians seek a religious exemption from anti-discrimination laws adopted in liberal states” in cases like Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding. At The World and Everything In It, Mary Reichard reviews the legal arguments in Masterpiece Cakeshop.


  • In an op-ed at the Huffington Post, Tim Lynch looks at a cert petition in a criminal case “that raises fundamental constitutional questions concerning federal power and police accountability for civilian deaths.”
  • At Horvitz & Levy’s At the Lectern blog, David Ettinger notes that the solicitor general has recommended that the court deny review of a California Supreme Court decision holding that “California’s temporary ban on a particular method of gold mining pending adoption of suitable regulations is not preempted by federal law.”
  • At Law360 (subscription required), Daniel Walfish explains why “[t]he Trump administration’s new position on the constitutionality of the U.S. Securities and Exchange Commission’s administrative law judges is more far-reaching and potentially consequential than is generally understood.”
  • US Law Week Blog’s Court Reporter salutes the achievement of second-time Supreme Court litigant Fane Lozman, noting that “[f]or private citizens, winning cert. even once is about as difficult as cutting down the mightiest tree in the forest with a herring.”


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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Dec. 12, 2017, 7:19 AM),